IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Warnakulasuriya Ludgar Leo Kamal Thamel, ‘Rebeka’, Play Ground Road, Wennappuwa.

Plaintiff SC APPEAL NO: SC/APPEAL/153/2019 SC HCCA LA NO: SC/HCCA/LA/47/2018 HCCA NO: NWP/HCCA/KURUNEGALA/18/2017/LA DC MARAWILA NO: 3173/D Vs.

Nawarathna Tirani Deepika Damayanthi Nawarathne, ‘Rebeka’, Play Ground Road, Wennapuwa.

Defendant AND BETWEEN Nawarathna Tirani Deepika Damayanthi Nawarathne, ‘Rebeka’, Play Ground Road, Wennapuwa.

Defendant-Petitioner Vs.

Warnakulasuriya Ludgar Leo Kamal Thamel, ‘Rebeka’, Play Ground Road, Wennappuwa.

Plaintiff-Respondent AND BETWEEN Warnakulasuriya Ludgar Leo Kamal Thamel, ‘Rebeka’, Play Ground Road, Wennappuwa.

Plaintiff-Respondent-Petitioner Vs.

Nawarathna Tirani Deepika Damayanthi Nawarathne, ‘Rebeka’, Play Ground Road, Wennapuwa.

Defendant-Petitioner-Respondent AND NOW BETWEEN Warnakulasuriya Ludgar Leo Kamal Thamel, ‘Rebeka’, Play Ground Road, Wennappuwa.

Plaintiff-Respondent-Petitioner-

Appellant Vs.

Nawarathna Tirani Deepika Damayanthi Nawarathne, ‘Rebeka’, Play Ground Road, Wennapuwa.

Defendant-Petitioner-Respondent-

Respondent Before: Hon. Justice Murdu N.B. Fernando, P.C.

Hon. Justice E.A.G.R. Amarasekara Hon. Justice Mahinda Samayawardhena Counsel: Harsha Soza, P.C. with Ajith Moonesinghe for the Plaintiff-

Respondent-Petitioner-Appellant.

Sudarshani Coorey for the Defendant-Petitioner-

Respondent-Respondent.

Argued on: 31.05.2023 Written Submissions:

By the Appellant on 22.07.2019 and 14.07.2023 By the Respondent on 27.09.2019 and 13.07.2023 Decided on: 28.02.2024 Samayawardhena, J.

Background The plaintiff filed action against the defendant in the District Court of Marawila seeking a decree of divorce on the ground of constructive malicious desertion and custody of their four children. The defendant- wife filed an application under section 614 of the Civil Procedure Code dated 26.01.2006 seeking alimony pendente lite until the determination of the divorce action and costs of litigation. After a lengthy inquiry, the District Court by order delivered on 04.05.2017 directed the plaintiff to pay Rs. 60,000 per mensem as alimony pendente lite. The District Court did not order costs of litigation, possibly due to oversight. On appeal by the plaintiff, the High Court of Civil Appeal of Kurunegala, by judgment dated 11.01.2018, affirmed the order of the District Court. This appeal by the plaintiff is against the judgment of the High Court.

On 12.06.2019, this Court granted leave to appeal against the said judgment on the question whether the amount ordered as alimony is excessive in terms of section 614(1) of the Civil Procedure Code. At the argument on 31.05.2023, learned President’s Counsel for the plaintiff refined this question stating that the order of the District Court is not in compliance with the proviso to section 614(1) of the Civil Procedure Code.

However, this was raised as an additional question of law.

Section 614 of the Civil Procedure Code reads as follows:

614(1) In any action under this Chapter, whether it be instituted by a husband or a wife, the wife may present a petition for alimony pending the action. Such petition shall be preferred and dealt with as of summary procedure, and the husband shall be made respondent therein; and the court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the action as it may deem just:

Provided that alimony pending the action shall in no case be less than one-fifth of the husband’s average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be.

(2) A husband may present a petition for alimony pending the action. The provisions of the preceding subsection shall apply, mutatis mutandis, to such application.

(3) Where one of the spou